Court: Posting Entire News Article Was Fair Use

In a major setback for copyright enforcement company Righthaven, a judge has ruled that a nonprofit's reposting of an entire newspaper article was a lawful fair use.

U.S. District Court Judge James Mahan in Nevada said at a hearing on Friday that he intends to dismiss Righthaven's $150,000 infringement lawsuit against the Center for Intercultural Organizing. Mahan reportedly ruled that the the nonprofit made fair use of the article for several reasons, including that Righthaven itself didn't aim to monetize the original article -- a 1000-word Las Vegas Review-Journal piece about immigrants who were deported after being arrested for misdemeanors.

Instead, Righthaven acquires some of the rights to the original work from newspapers and then brings copyright infringement lawsuits. The lawsuit against the CIO is one of around 250 cases brought by Righthaven to date. The company was launched last year with the support of Stephens Media, parent of the Las Vegas Review-Journal. Most of Righthaven's lawsuits have been against bloggers, nonprofits and other small publishers who allegedly reposted all or portions of articles that originally appeared in the Review-Journal and The Denver Post.

Friday's ruling in favor of the Center for Intercultural Organizing marks the second time a federal judge has found that a site sued by Righthaven made fair use of a newspaper article.

U.S. District Court Judge Larry Hicks also ruled in favor of a site operator, but in that case, the defendant, realtor-blogger Michael Nelson, only posted eight sentences of a 30-sentence Review-Journal article. Righthaven has appealed that finding to the 9th Circuit and has said that it intends to appeal the more recent ruling as well.

Mahan's decision appears to mark the first time any court has found that reposting an entire newspaper article can constitute fair use. Previously, many media executives had assumed that bloggers or other publishers could only succeed with a fair use claim if they reposted a small portion of an article.

But Mahan found that even copying a piece in its entirety was legitimate, given the overall circumstances. In addition to the fact that the site's post didn't appear to harm Righthaven's ability to monetize the work, Mahan considered the CIO's nonprofit status -- and that Righthaven sued without first asking the site to take down the material. The federal copyright statute doesn't require content owners to send takedown notices before suing, but many do so in order to avoid costly litigation.

Taken together, those facts appeared to tip the equities against Righthaven, says David Ardia, director of the Citizen Media Law Project. "Righthaven, for whatever reason, has decided to sue defendants that are highly sympathetic," he says. He adds that the defendant in this case, a nonprofit, not only doesn't compete with the newspaper but is trying to serve the public interest by spreading news about matters critical to immigrants.

At the same time, the ruling could ultimately hurt the newspaper industry, which generally does not favor court decisions holding that other publishers are allowed to repost entire articles.

"Righthaven is not necessarily acting in the best interests of news organizations," Ardia says. "The results of some of these cases -- which strike many as overbearing and ill-advised -- are potentially creating law that will, in the long run, be detrimental to the interests of news organizations." In addition, in one part of the ruling that's already raising eyebrows among observers, Mahan reportedly called the article "informational," implying that it was less worthy of copyright protection than a more creative piece.

"There is reason to disagree with the court's conclusion that the original article was not creative," says David Ardia, director of the Citizen Media Law Project. "This was an investigative piece that involved more than just a single incident being reported," he says, adding that the original article drew on material contained in documents and interviews with multiple sources. "There are many different ways to put together a 33-paragraph article summing up all of that research."

Righthaven's bazaar business model played a major roll in the outcome of this case. Had they sent take-down notices their cases would have been much stronger for those that refused. Righthaven says it costs too much to send take-down notices but they are finding out the hard way it is more expensive not too.

Righthaven is now a tremendous liability for the entire newspaper and publishing industries. this is a failed experiment by Stephens media. They would be wise to pull the plug on Righthaven before even more damage is done.